The Digital Markets Act (DMA) enters into force this week. It sets out new, strict rules for a select number of online platforms of which businesses and consumers should be aware. These platform companies are known as gatekeepers (see also our earlier blog on the DMA).
Who are the gatekeepers?
In sum, gatekeepers are companies that provide a platform service so large that consumers and business users are dependent on it. The legislature therefore considers stricter rules necessary. The characteristics of gatekeepers mean that many cases may involve:
“serious imbalances in bargaining power and, consequently, to unfair practices and conditions for business users, as well as for end users of core platform services provided by gatekeepers, to the detriment of prices, quality, fair competition, choice and innovation in the digital sector.”
The European Commission (Commission) has identified six gatekeepers: Alphabet (Google), Amazon, Apple, ByteDance, Meta and Microsoft. Not all the services offered by these gatekeepers are regulated by the DMA – only what is known as ‘core platform services’. In total, the Commission has identified 20 core platform services, shown in the Commission's illustration below.
The core platform services of the six gatekeepers must comply with the DMA by 7 March 2024 at the latest. This also means that businesses using these platforms (known as ‘business users’) can benefit as from that date from the extra protection that the DMA offers them. However, we see in practice that many businesses that deal with gatekeepers are wondering how they can use the DMA to their advantage.
The Netherlands Authority for Consumers and Markets (ACM) noted back in December 2023, at the CRA Congress, that so far few businesses were contacting it about the benefits of the DMA. According to the ACM, smaller players might fear a protracted legal battle with a multinational, or possible retaliation by large platforms. But businesses might also simply be in the dark, according to the ACM.
The rules in the DMA appear complex at first glance. This is partly because the DMA sets out a wide range of rules. Some obligations, for instance, are relevant to advertisers, while other provisions are relevant to app developers, hardware manufacturers or webshops. Moreover, some rules relate to the relationship between the gatekeeper and end users, rather than to the relationship with business users (e.g. webshops). In our upcoming blogs, we will focus on the rights that various groups of business users can base on the DMA.
Obligations from which webshops can benefit
In Articles 5, 6 and 7, the DMA imposes obligations on gatekeepers. Articles 5 and 6 are particularly relevant to webshops. Article 5 contains a set of predetermined, relatively defined rules. Article 6 contains obligations that may be further specified by the Commission. The Commission may determine, for instance, how a gatekeeper should implement the obligations in Article 6 (known as ‘delegated acts’). Both articles aim to ensure that markets on which gatekeepers operate are and remain ‘contestable’ and fair.
Below, we address five DMA obligations from which webshops (i.e. business users of sales platforms such as Amazon, Google Shopping or Meta Marketplace) may specifically benefit.
- Possibility of making a better offer outside the platform – Article 5(3) DMA. Many webshops offer their products or services through different channels: through their own website, on the platform of a gatekeeper (such as Amazon, Google Shopping or Meta Marketplace) and through alternative platforms of companies that are not designated as gatekeepers, such as Bol.com. Some platforms require that webshops do not charge better prices through these other channels. This may stem from the idea that webshops would otherwise benefit from being found through the platform but would then make the transaction through another channel, as a result of which the platform would not earn from it. These are also known as parity clauses.
Article 5(3) DMA prohibits this. Webshops using core platform services must be free to apply different prices and conditions when selling their products or services through their own webshop or on another platform. This means that Amazon, for instance, therefore may not prohibit webshops from also offering their products on Bol.com or eBay; nor may Amazon prohibit webshops from offering lower prices or better terms and conditions on other platforms or in its own webshop.
- Possibility of promoting and concluding transactions outside the platform – Article 5(4) DMA. A gatekeeper may not prevent webshops and end users from dealing directly with each other outside the gatekeeper's platform. Before this obligation, business users of platforms were often contractually obligated to use the platform’s services for e.g. communication, identification, promotion and payment. From now on, webshops may directly approach customers, also if they were initially recruited through the platform, with offers and enter into contracts with them – also outside the platform.
- No competition based on confidential information from webshops – Article 6(2) DMA. Gatekeepers may continue to compete with webshops. Amazon, for instance, may offer products similar to those of its business users. In doing so, however, gatekeepers may not use data that (a) is non-public; and (b) is generated or provided by webshops in using the core platform service (or related services). This includes data generated or provided by the customers of webshops (typically consumers).
Non-public data means all aggregated and non-aggregated data generated by webshops that can be derived or collected from the commercial activities of webshops or their customers. This includes click, search, display and voice data on/via the platform (or related services). A case in which a similar issue previously arose is the Amazon Marketplace case.
- Prohibition of self-preferencing – Article 6(5) DMA. Platforms – such as Amazon, Google Shopping and Meta Marketplace – offer a ranking of search results. Within these rankings (and associated website indexing and web crawling), they may from now no longer treat their own services and products more favourably than similar services or products of webshops. A platform may not reserve a better position for its own offering on an online marketplace, for instance. Moreover, the ranking conditions must be transparent, fair and non-discriminatory. A case in which a similar issue previously arose is the Google Shopping case.
- Free access to data of a webshop and its customers – Article 6(10) DMA. When webshops use core platform services such as Amazon, Google Shopping or Meta Marketplace (or related services), they and their end users provide and generate a great deal of data, such as data provided when making transactions via Amazon or Google Shopping. This may include personal data. Gatekeepers must provide webshops with effective, high-quality and continuous real-time access to such data on request and free of charge. In the case of personal data, it must be directly related to the products or services offered by the webshop on the core platform service in question. End users must also consent to the provision of the data.
Contact the ACM if a gatekeeper acts in breach of the rules
Apple, Amazon, Meta and Google have now adjusted their services in a manner that they believe to be compliant with the DMA. The question is whether this suffices in practice. If webshops are hindered by gatekeepers that do not comply with the DMA, a number of options are available to them.
First, webshops can complain directly to the Commission (Article 27 DMA). They may do so in the form of an enforcement request, but also by sharing informal signals. A more accessible way of raising concerns is at the DMA workshops organised by the Commission for stakeholders. The workshops of potential interest to webshops, namely those of Meta, Amazon and Alphabet (Google), will take place on 19, 20 and 21 March 2024. The workshops will give webshops the opportunity to ask questions and provide feedback on the compliance measures proposed by the gatekeepers. Following signals, the Commission may opt to initiate enforcement proceedings (Article 20 DMA).
Closer to home, webshops may also contact the ACM. The ACM sets great store by business users taking advantage of the opportunities offered by the DMA. It will provide business owners and consumers with additional information on their rights and obligations under the DMA later this year and has called on other NCAs to do the same. To this end, the ACM will organise a conference for businesses in June 2024 on the positive effects of the DMA. The ACM has also expressed the hope that businesses will contact them in the event of violations of the DMA. Webshops and other business users that wish to report to the ACM are well-advised to prepare their reports thoroughly in order to increase their chances of success. The complaints that the ACM receives may be used in its investigation of possible violations. The ACM transfers that information to the Commission (Article 27 DMA), which may use it in taking enforcement action against gatekeepers.
Finally, webshops may apply to civil courts. But if the Commission has not first established that a gatekeeper has violated the DMA, this is a potentially costly and time-consuming process. However, the Commission may play a supporting role in this regard, for instance by submitting written observations on its own initiative in civil proceedings (Article 39(3)). Conversely, national courts may ask the Commission for advice on the application of the DMA (Article 39(1)).
Importantly, gatekeepers may not restrict or prevent companies from bringing a violation of the DMA to the attention of the ACM, the Commission or a civil court. This expressly follows from the DMA itself (Article 5(6) DMA). If they do so nevertheless, that too is grounds for a report to the ACM or the Commission.
Need help?
Stimulating the digital economy is high on the ACM’s agenda. If your company believes that the platforms are not complying with the DMA, or are abusing their dominant position in relation to you, it is important to file a report with the ACM or the Commission. A company may do so alone, but also together with industry peers – for instance via the trade association. We will be pleased to advise you on the most effective way of filing such a report, to maximise the chances of the ACM taking your complaint seriously. Please contact us if you wish to do so.
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